Monday, March 02, 2015

Jay Sayta is a final year law student at the National University of Juridical Sciences Kolkata and runs GLaws.in; India's first and only website on gaming laws.

Jay started GLaws.in in 2010 as a resource to monitor developments in the gaming industry. In a short span of four and a half years years, GLaws.in has become a premier resource for everyone associated with the Indian gaming industry. Jay has also articulated his views on topics like legality of games of skill, benefits of legalising sports betting, need for bringing reforms in sports bodies like BCCI, need to curb the malaise of match-fixing etc. Here, he answers a few questions on his latest public interest litigation (PIL) petition filed in Bombay High Court seeking the notification Maharashtra Casinos (Control & Tax) Act 1976, which legalised casinos, gaming and wagering.

Q How is your petition different from the earlier ones filed in the High Courts and in the Supreme Court, all of which, ultimately upheld executive's discretion as to the timing when it would notify an Act or a part of it? What additional grounds, which were not argued earlier, you raise in this petition?

A. I have filed a petition against the Maharashtra government for not notifying the Maharashtra Casinos (Control & Tax) Act, 1976, a little known legislation which legalises gambling and wagering through licenses in the state of Maharashtra. The Act has been passed by both the Houses of the Legislature and assented by the government; however it has not been notified under Section 1(3) and rules/notifications have not yet been prescribed under this Act.

We have inspected and got copies of the relevant files from the Law Department, Government of Maharashtra. There is nothing on record to show that the government has considered notifying the Act or applied its mind on the issue. In the other cases, there have been some difficulties or practical reasons brought on record.

Secondly, the Supreme Court decision in Aeltmesh Rein v. Union of India (1998) 4 SCC 54 still operates and as per that decision, Courts can issue directions to the government to consider bringing a legislation or part of it into force. This is the first case where an entire legislation has not been brought into force for 38 years. Surely such a case of gross oversight or non-application of mind of the executive demands judicial intervention. The UK House of Lords has also said in Secretary of State for the Home Department, ex parte Fire Brigades Union (1995) 2 AC 513 (HL) that a situation where the executive never enforces a statute while continuing another legislation can never arise. In this matter, 38 years of executive inaction gives the impression that the government never intends to implement this legislation and the courts should thus intervene.

We are also additionally adding the ground that this is a fraud on the Indian constitution and violation of the doctrine of separation of powers as the executive is taking away legislative functions by keeping the Act in abeyance for such a long period of time. Various academicians and jurists including writers on this blog have indicated that AK Roy's judgment should be reviewed or at least future cases of executive inaction should be viewed differently keeping in mind the Fire Brigades Union and Aeltmesh Rein decisions.

Q. Why are you so passionate about the issue?

A. I run http://glaws.in/ a website on gambling laws in India. I started this website in 2010 because there was little research on this area and I strongly believed that the current gambling legislations are archaic and there is a need to change them. We need to legalise gambling and betting as it will be a great source of revenue for the governments. Additionally legalising gambling will reduce sources of revenue for the underworld and criminal elements thereby reducing black money and terror financing. It will also reduce fixing and cheating in sport. I have written about this in journals, online portals, newspapers etc. and also spoken on this in various fora.

Q. What do you think is the real reason for the state government not notifying the Act? Are there any pressure from interested lobbies not to notify it?

A. There is no reason on record. Maybe the government simply forgot about this Act and didn't apply its mind. In any case, this is a politically sensitive issue and has moral dimensions and I would imagine that to be the main reason why the government hasn't notified this Act (though interestingly government has considered several proposals to setup casinos in the state, but I don't think they have linked those proposals to this Act or thought seriously about legalising casinos).

Q. Are there any other similar Acts, which remain unnotified in Maharashtra?

A. I am aware of at least one another unnotified legislation, i.e. the Maharashtra Dog Race-Courses Licensing Act, 1976 which legalises dog races and betting thereof and was passed by the legislature around the same time. I am not aware of any other Maharashtra legislations which have remained unnotified for such a long period of time.

Q. Have you researched this subject at the national level? I am intrigued, for instance, about Section 16 of the Petroleum and Natural Gas Regulatory Board Act, which was not notified in 2007, when the Act's other provisions came into force, but got notified in 2010. The PNG Minister at that time said in Parliament that the text of the Bill did not reflect the intent of the statute. How the Government changed its view within three years of the other provisions coming into force is not clear. Also, the PNGRB seems to have taken the view that the provision, even though it was notified in 2010, took a retrospective effect from 2007.

A. I have not looked at the provisions of the Petroleum and Natural Gas Regulatory Board Act in detail. I think the factual background of my case is slightly different. We will have to wait for the government's response before we could draw an analogy with the Petroleum matter.

Q. Do you think a fresh challenge is possible in the Supreme Court, citing additional grounds, which were not raised in previous cases, the last one being Union of India v. Gajanan Mahajan Sansthan.

A. I do think a fresh challenge in the Supreme Court is possible citing additional grounds not raised in Union of India v. Gajanan Mahajan Sansthan, (2002) 5 SCC 44. I have mentioned several grounds in response to your earlier question which are unique and have not been raised earlier. You can also refer to my petition for additional grounds which is available here.

Thursday, February 19, 2015

At the conclusion of the last hearing on February 13, Justice Mukhopadhaya was heard saying 'We will provide justice to both, but relief to one'. This would have made some wonder whether the denial of anticipatory bail to Teesta and her husband could be interpreted as relief to the State. The atmosphere at Court No.4 that day left no one in doubt that the Court would not disagree with the High Court's denial of anticipatory bail to the appellants. The reason for the sudden change of Bench to hear the matter was the buzz among the lawyers and the journalists at Court No.5 today. An official denial that Justice Mukhopadhaya and his brother, Justice Ramana have recused has been reported, but what was not reported was why the CJI had changed the Bench. Well, the reason can only be speculated at this stage. Did the Gujarat Government backtrack after witnessing the extent of support to Teesta from the civil society? There was a hint of possible bias, as reported in a section of the press, on the part of the Mukhopadhaya-Ramana Bench in favour of the Gujarat Government, but the details could not be confirmed. In any case, the change of Bench was not an issue with the litigants, as even the Gujarat Government had no grievance about the sudden change of Bench on the eve of today's hearing. Jutice Dipak Misra's observations today set the stage - that liberty is paramount, that it cannot be kept in ICU or put on a ventilator. He was responding to Mr.Kapil Sibal's observation that the State cannot take upon itself the task of persecuting those who fight against it. Responding to Mr.Mahesh Jethmalani, counsel for Gujarat, he also said anticipatory bail is neither the rule nor the exception. He made two interesting observations: anxiety is in the realm of abstraction; wisdom is lost to knowledge; knowledge to data and finally to gossip. Teesta's counsel, Mr.Kapil Sibal offered his own: one who knows he knows is a fool. Mr. Mahesh Jethmalani retorted he did not claim he knew. At one stage during the two-hour long hearing, it appeared as if Justice Dipak Misra was succeeding in persuading Mr.Mahesh Jethmalani to abandon one charge after another - sections 420, 468, and 120-B of IPC and 72A of Information Technology Act which have been invoked against Teesta and her husband. Then Justice Dipak Misra said only Section 406 IPC remained. Should liberty be put on ventilator just to pursue this charge, he asked Mr.Mahesh Jethmalani. Non-cooperation of the accused with the I.O. is the only issue which necessitates custodial interrogation, Mr.Mahesh Jethmalani said. 'They are obliged under law to provide all documents', said Justice Dipak Misra, and added, 'You cannot expect answers in a particular manner'. Personalities do not become protagonists; case rests on its own facts, Justice Dipak Misra observed. It was clear that the Bench had made up its mind, to continue the stay and reserve the judgment in the meantime. Update 1: Readers may find the Telegraph story here useful for additional reporting on the hearing. Also, livelaw's near-exhaustive report on the proceedings can be read here.

Update 2: My initial post in which I wrote that the Judges who first heard the case might have recused turned out to be correct. SC's unusual clarification of the matter can be read here.

Wednesday, February 18, 2015

Teesta Setalvad's appeal against the rejection of her application for anticipatory bail by the Gujarat High Court is coming up before a Bench of the Supreme Court, other than the one which heard the case on 13th. On 13th, the Bench comprising Justices S.J.Mukhopadhyaya and N.V.Ramana heard the case, and adjourned it for detailed hearing on 19th. Tomorrow's cause list has listed the case under Court No.5 (Item 2), before Justices Dipak Misra and Adarsh Kumar Goel. It appears that the Bench which heard the case on 13th has recused itself from hearing it. With this change in the Bench, the chances of Teesta Setalvad and her husband, Javed Anand securing the anticipatory bail from the Supreme Court have brightened up. During the last one week, civil society has been busy campaigning against her custodial interrogation. My article on the issues involved has appeared here, followed by another piece from Mumbai. Prashant Bhushan has written a persuasive piece against custodial interrogation, where it is not warranted, in the Times of India today.

Update: The composition of the Bench hearing this matter was changed at the behest of the Chief Justice on the administrative side, according to Times of India, and not because the previous Bench recused.

Monday, February 16, 2015

The review petition filed by the death row convict, Sonu Sardar against his death sentence in the Supreme Court was dismissed on February 10 after a day-long hearing. The brief order uploaded now at the Supreme Court's site (R.P.(Crl) No.370/2014) just says that its judgment dismissing his appeal against the death sentence does not suffer from any error apparent warranting its reconsideration. The order is disappointing because it does not answer some of the important issues which came up during the arguments.

One was the meaning of "extreme youth", which Bachan Singh said, is an important factor meriting commutation of death sentence of a convict. Should the term be understood as an accused who has just crossed the juvenile age and attained adulthood? Sonu Sardar was just 18 years and two months when he committed the crime, although his age at the time of commission of crime was wrongly recorded in the judgments as 23. Justice J.Chelameswar, one of the three Judges on the Bench, suggested that Bachan Singh used that expression because the Juvenile Justice Act at that time (in 1980 when Bachan Singh was delivered) was not uniform (across the States). The question arose as Justice Chelameswar was keen to know how the Court can conclude that there is no possibility of reformation of the convict. Raju Ramachandran, counsel for Sonu Sardar, suggested that while there can be a presumption that youth and tender age are factors which could help reformation, it could be dislodged by the prosecution.

Justice Chelameswar specifically agreed with Raju Ramachandran that the fact that the convict did not participate in the jail break could be a mitigating factor, but was reluctant to place greater weight on the jailor's report recommending commutation of sentence for the convict on this and other grounds, as compared to the courts' conclusion that he did not deserve commutation.

And then there are other issues: the convict was part of a five-member dacoity gang which murdered four members of a family including two children. Apart from him, and another minor, the other three are absconding. The Court was doubtful whether Sonu Sardar was guilty of giving the fatal blow to the victims, and wanted the State to produce evidence to it. It is not clear whether the State satisfied the court on this issue. The application of Section 396 IPC, therefore, is problematic, as there are precedents to show that in such cases, the Court gave benefit of doubt to the convict, and reduced the death sentence to life sentence. Besides, the only child witness did not witness the actual commission of the crime, before she ran away from the scene of the crime.

As Sonu Sardar is unlikely to benefit from the delay factor in disposing his mercy petition by the President, all doors seem to have been closed for him, unless the President gives due consideration to his second mercy petition, following the rejection of his review petition afresh by the Supreme Court.

Friday, February 13, 2015

The Justices of the Constitutional Court of
South Africa are pleased to invite applications from outstanding recent law
graduates and young lawyers interested in serving as foreign law clerks. Candidates may be appointed to start as soon
as 1 April 2015.

Background

South Africa continues to be regarded as one
of the most intriguing and compelling examples of constitutionalism in the
transition to democracy. Its Constitution
is viewed as one of the world’s most progressive founding charters.

The
Constitutional Court, the country’s highest court, is the guardian of that
promise. It has, in a range of
ground-breaking decisions, given content to the Constitution’s guarantees by,
for instance, ruling the death penalty unconstitutional; upholding full
equality for gay and lesbian people; declaring that resident non-citizens are
entitled to social benefits; and ordering the government to make
anti-retroviral treatment available to pregnant mothers living with HIV/AIDS.

A highly
respected commentator, Justice Ruth Bader Ginsburg of the United States Supreme
Court, stated the following in the context of a discussion of new democracies:

“I would not look to the U.S. Constitution, if
I were drafting a Constitution in the year 2012. I might look at the Constitution of South
Africa. That was a deliberate attempt to
have a fundamental instrument of government that embraced basic human rights
[and] had an independent judiciary.
. . . It really is, I think, a great piece of work that
was done.”

About the Position of a Foreign Law Clerk

Each year, 15 to 20 young lawyers from around
the world serve as foreign law clerks to the Constitutional Court. Working alongside two South African law
clerks, foreign law clerks assist a specific judge in performing his or her
duties.

The responsibilities of foreign law clerks are
essentially the same as those of their South African counterparts and similar
to judicial clerks elsewhere in the common law world. These include extensive legal research and
writing, as well as the formulation, drafting, and editing of judgments. The Court itself is highly collaborative,
allowing for substantial engagement among clerks from all chambers.

Foreign clerks
are usually only appointed to serve one six-month term. However, some may serve for longer subject to
agreement and, at times, in more than one Chambers.

Foreign
law clerks are not remunerated by the Court. Therefore, it is essential that they seek
their own funding to cover their expenses, including food, accommodation,
travel to and from South Africa, visas and travel to and from work daily.

Requirements

Foreign law clerk applicants must be in
possession of an LLB degree or an equivalent degree (such as a JD) or in the
final year of study for such a degree.
Further, they must be fluent in English, the primary language of the
Court.

Applicants should also demonstrate an interest
in constitutional, comparative and international law. Academic excellence, relevant research
experience, and one to two years of work experience (especially clerking for
another court) are all preferred.

Substantial knowledge
of South African law is not a prerequisite, but familiarity with South Africa’s
history and contemporary affairs is highly valued.

Application Process

Applications for
foreign clerks will be considered on a rolling basis subject to some important
deadlines. Applications for the first
round of 2015 hiring will be accepted from 1 February to 31 March 2015. Applicants should propose start dates that
would begin prior to December 2016.
The Court will also accept applications during a second round of hiring
from 1 July to 31 August 2015, at which time existing applicants are welcome to
revise or supplement their applications.
Due to the high number of applications, the Court will only respond to successful
applicants.

Applications must include the following: (1) a
cover letter describing the applicant’s interest in the Court’s work that must
specify a proposed start date (or range of start dates) for which he or she
would like to be considered; (2) a full curriculum vitae; (3) copies of all
post-secondary academic records (unofficial transcripts are permitted); (4) a
legal writing sample of approximately 6-12 pages; and (5) at least two
reference letters (at least one academic and one professional). Please note that applicants may either have
references send the letters directly to the Court or applicants may compile the
letters and send a complete application to the Court themselves.

Applications should be submitted to Mr Mosala
Sello in the Chambers of Justice Johann van der Westhuizen, who will
respond with an email in due course acknowledging receipt of each application:

Further details on the programme may be found
on the Constitutional Court website: www.constitutionalcourt.org.za. Applicants
requiring additional information are welcome to contact Mr Sello via email (sello@concourt.org.za) or telephone (+27
11 359 7427).

Thursday, February 12, 2015

Karnataka (India) Section of the International
Commission of Jurists are delighted to invite you to a seminar on

Independence of Judiciary and National Judicial
Appointments Commission

Date: February 15, 2015 (Sunday)

Venue: Karnataka Judicial Academy

Crescent House, Crescent Road, Bangalore – 560 001.

Background on KSICJ

The Karnataka (India) Section of the International
Commission of Jurists, which was formerly known as the Mysore (Karnataka) State
Commission of Jurists, owes its existence to the progressive and erudite
members of the Bangalore Bar, who founded it on 4th April 1959. The inspiration
was the International Commission of Jurists, which was founded in 1953, in the
aftermath of the Second World War. Its main role was to defend Human Rights and
fundamental freedoms, so that the universal Declaration of Human Rights adopted
by the United Nations General Assembly on the 10th of December 1948, could
become a reality in all parts of the World. The ICJ has been functioning and
fighting many a battle, such as against apartheid in South Africa and the
repressive regimes in Spain, Argentina and other parts of the World. The ICJ
has worked tirelessly for the evolution of many International Human Rights
Instruments for the propagation of the Rule of Law, such as the Declaration of
Delhi (1995), the Bangalore Declarations (1995), etc.

As on date, the Karnataka (India) Section is the only
active affiliate of the ICJ in India. Continuing its role in galvanising public
debate on important legal issues, particularly those concerning the rule of law
- the KSICJ has organised this seminar on Independence of Judiciary and
National Judicial Appointments Commission.

Theme

The judges in India's Supreme Court and High Courts are the
guardians of our democratic institutions and fundamental freedoms. Especially
today when the public increasingly turns to judges, almost exclusively, to
safeguard our constitutional values. This calls for a rigorous evaluation of
the competence and qualities of those who occupy these positions and the
processes by which are appointed. However surprisingly, the widespread concerns
regarding competence and efficiency of judges, their independence and their
accountability has not been matched by public or parliamentary debates on these
issues. The current seminar therefore, is an attempt to remedy this. It hopes
to provoke public debate and invite comments of respected jurists on these
significant issues.

Teesta Atul Setalvad v State of Gujarat may well be a test case to decide whether the State's eagerness for custodial interrogation of an accused has to be given primacy over the accused's civil liberties. The Gujarat HC's order, delivered today by Justice J.B.Pardiwala, rejecting social activist Teesta's anticipatory bail application is fairly detailed, and a pointer to the possible miscarriage of justice in her case.

Teesta's appeal against High Court's order will come up on February 13 for hearing before Justices Sudhansu Jyoti Mukhopadhyaya and N.V.Ramana at Court No.4 as Item No.57.

Gujarat High Court's order can be downloaded from Gujarat High Court's site. Case Number is CRMA 4677/14, delivered today.

Today, it came up before the CJI's Bench which posted it for hearing before the appropriate bench tomorrow, while granting interim protection to the appellants till then. Senior advocate, Kapil Sibal, is representing the appellants.

Monday, February 09, 2015

In this judgment authored by Justice Adarsh Kumar Goel, and delivered today, the Supreme Court has upheld the validity of the Government servants conduct rules which prohibit second marriage when the first marriage is subsisting. The appellant, a Muslim, challenged the validity of the Conduct Rules, on the ground that it violates Article 25. The Court dismissed the contention by relying on Sarla Mudgal v Union of India , and Javed v State of Haryana. In Sarla Mudgal , the Court had suggested to the UOI to enact a Uniform Civil Code and in a case last year, the Delhi High Court dismissed a petition seeking a direction to the UOI to enact UCC. [The judgment is here]

In Javed, the challenge was against a law which sought to disqualify successful candidates in Panchayat elections, if they had more than two children. The Supreme Court upheld the law, and dismissed the challenge.

What one finds interesting in both Javed and Khursheed Ahmad Khan is that the Supreme Court has carefully avoided any reference to the enactment of UCC.

Saturday, February 07, 2015

King's College London is organizing its inaugural Transnational Law
Summer Institute this July. Do consider applying if you are an early career researcher or doctoral student.

Scholarships
are available for exceptional students from across the globe - so
please do share with your personal international contacts. Full details are
available on the Transnational Law Institute web
pages.

Thursday, February 05, 2015

Over the last few days, there has been considerable discussion of the controversial use by the BJP of the original, unamended Preamble to the Constitution of India in an advertisement campaign. See, for instance, the views of Upendra Baxi and Salil Tripathi on this issue. In the following guest post, Arvind Narrain of the Alternative Law Forum sets out his view on the questions involved.

The present political dispensation hinting that
they would go by the unamended version of the preamble (which did not have the
words socialist and secular in it) has stirred the pot of controversy.

The intellectual support for this move has been
articulated by Ravi Shankar Prasad who as reported by the Hindu (29.1.15) argued
that the amended preamble is inauthentic. The inauthenticity according to Ravi
Shankar Prasad resides in two factors: the first being that the framers of the Constitution did not
deem the two words in controversy, socialism and secularism, necessary and
secondly that the words came in as part of the emergency during Indira Gandhi’s
authoritarian rule. Under pressure from various quarters for his statement as
reported in the Hindu, Ravi Shankar Prasad claimed in a clarificatory statementthat he had been misquoted. However regardless
ofthe withdrawal, the reasons articulated
by the Minister in his initial reported statement need to be critiqued as those
reasons continue to be cited in support of the demand to replace the preamble
with the unamended version.

The question of whether the preamble can at all be
amended has been answered by the Supreme Court in Kesavananda Bharti where the Court held that all parts of the
Constitution including the Preamble can be amended save what is “the basic structure or framework of the
Constitution.”

The philosophical justification for recognizing the
legitimacy of constitutional
amendment was well articulated by Justice Khanna in Kesavananda who quotes Thomas Jefferson to opine that:

Each
generation according to Jefferson should be considered as a distinct nation and
with a right by the will of the majority to bind themselves but none to bind
the succeeding generations, more than the inhabitants of another country. The
earth belongs in usufruct to the living and the dead have neither power nor the
right over it.

The caveat introduced by Kesavananda in this otherwise unlimited power of each generation to
change the constitution is the limitation imposed by the basic structure
doctrine. One way of understanding the doctrine of basic structure is that it
is a way of limiting parliamentary power in a country which has minorities of
many stripes and hues. By limiting the
power of parliament to amend, the Court is recognizing that giving unlimited
power to an institution which functions on the basis of the power of the
majority, will put minority rights at the mercy of majority whims and fancies. Kesavananda
is deeply concerned about the dangers of unbridled majoritarianism and what it
can do to the concept of a diverse and plural India.

As Justice Sikri observed in Kesavananda:

There is
no hint anywhere that abrogation of minorities rights was ever in the
contemplation of the important members of the Constituent Assembly. It seems to
me that in the context of the British Plan, the setting up of the Minorities
Sub- Committee, the Advisory Committee and the proceedings of these committees
as well as the proceedings of the Constituent Assembly mentioned above, it is possible
to read the expression ‘amendment of the Constitution’ as empowering parliament
to abrogate the rights of minorities.

Justices Hegde and Mukerjea have observed that:

Our
constitution was framed on the basis of consensus and not on the basis of
majority votes. It provides for the protection of the minorities. If the
majority opinion is taken as the guiding factor then the guarantees given to
the minorities may become valueless.

Kesavananda is
equally concerned about what those with economic power can do to those who lack
economic resources. Within Kesavananda’s
perspective, a politicalmajoritywhich is based upon the wealth of the few can
be deeply injurious to the lives of the many. To protect those who would
otherwise be at the receiving end of an economically powerful political majority, Kesavananda recognises egalitarianism and the welfare state as part
of the basic structure.

As Justices Hegde and Mukerjea opined:

On a
careful consideration of the various aspects of the case, we are convinced that
the parliament has no power to abrogate or emasculate the basic elements or
fundamental features of the Constitution such as the sovereignty of India, the
democratic character of our poli[t]y, the unity of the country, the essential
features of the individual freedoms secured to the citizens. Nor has the
parliament the power to revoke the mandate to build a welfare state and
egalitarian society.

The recognition of minority rights as part of the
basic structure necessarily implies a defence of secularism by Kesavananda. The recognition of
egalitarianism and the welfare state as part of the basic structure implicitly
recognizesthat socialism too is part of
the basic structure. As such, the introduction of the words secularism and
socialism through constitutional amendments is not destructive of the
Constitution but rather explicates the basic structure of the Constitution and
hence come within the power of the parliament’s power of amendment.

What are prohibited are amendments which destroy
the Constitution. As Justices Hegde and Mukerjea opine:

Despite
these limitations, however, there can be no question the amending power is a
wide power and it reaches every Article and every part of the Constitution.
That power can be used to reshape the Constitution to fulfil the obligations
imposed on the state. It can also be used to reshape the Constitution within
the limits mentioned earlier to make it an effective instrument for social
good. We are unable to agree with the contention that in order to build a
welfare state, it is necessary to destroy some of the human freedoms. That at
any rate is not the perspective of our Constitution.

Going by a close reading of Kesavananda, clearly the proponents of the unamended preamble
cannot make the case that the amendments introducing the words socialism and
secularism are tantamount to tampering with the basic features of the
Constitution. In fact the introduction of these words merely makes explicit what is implicit in the
Constitution.This is the unequivocal
conclusion of the Supreme Court in S.R.
Bommai where Justice Ahmedi pronounced that:

Notwithstanding
the fact that socialist and secular were added in 1976 by Constitutional
amendment, concept of secularism was embedded in our constitutional philosophy.
The amendment made explicit what was implicit. The Preamble itself spoke of
liberty of thought, expression, belief, faith and worship. While granting this
liberty the Preamble promised equality of status and opportunity. The
Constitutional abhorred discrimination on grounds of religion....

The hearkening by Ravi Shankar Prasad to what the
Constitution meant originally is disingenuous as there is no conflict between
the original ideals in the preamble and the introduction of the words secular
and socialist through the 42ndamendment.

The insistence on the ‘original preamble’ is not
out of any real love for the Constitution. What the current ruling dispensation
wants to say is they have a problem with
the notion of both secularism and socialism. To invoke the dubious legacy of
the 42ndamendment is to
instrumentalize history, with the sole objective of destroying what they claim
to protect. As such the bluff should be called.

Again the last word rests with Justice Khanna (of
the famous dissent in the Habeus Corpus
case) who in Kesavananda observed
that:

Provision
regarding the amendment of the constitution does not furnish a pretence for
subverting the structure of the constitution nor can Article 368 be so
construed as to embody the death wish of the Constitution or provide sanction
for what may perhaps be called its lawful hara-kiri?

D

oes this clamour for the unamended preamble ‘embody the death wish of the
Constitution’and are those in the
forefrontof this demand nothing more
than the executioners of the Constitutional idea of India?

Tuesday, February 03, 2015

CLPR invites
applications for Research Associates at Bangalore.CLPR is a non-partisan and not-for-profit
organization engaged in law and policy research as well as impact litigation in
the public interest on a variety of legal issues such as disability
discrimination, social rights protection including the right to education,
health and livelihood, consumer rights, environment and biodiversity, the
rights of children and women’s rights among others.We are looking for lawyers with initiative,
vision, and a strong commitment to the struggle for social justice.

The Research
Associate will work primarily on a project on law relating to public health but
must be ready to engage with other on-going research in the field of
disability, IP and constitutional social rights. The associate will develop new
research projects for the centre. Other duties will include writing blog posts
and policy briefs and representing CLPR in various fora, including before
community groups, legislators and state agencies;

Candidates must
have the following qualifications:

•A B.A.LL.B degree from a reputed university.
We prefer candidates with a Master’s degree in law with a significant research
component from a top tier university

•Strong academic background;

•Excellent research and writing skills;

•Demonstrated commitment to public interest
law

Please submit
the following documents as one attachment: a cover letter, resume, one writing
sample and two references to:jayna.kothari@clpr.org.in.

Monday, February 02, 2015

A paper I wrote on the institution of the law clerkship on the Supreme Court of India was published in the International Journal of the Legal Profession, and is now available for free online. A draft of the paper had earlier been posted on SSRN as part of the Harvard Law School Program on the Legal Profession Research Paper Series. An earlier post about this on LAOT is available here. Here's an abstract of the paper:

"Since the 1990s, judges of the Supreme Court of India have hired law clerks to help them perform some of their routine tasks. However, while clerkships on the U.S. Supreme Court are considered very prestigious and are extensively written about, clerkships on India's Supreme Court are considered to be of significantly lower value by the local legal profession and teaching market in India. Instead, ironically, clerkships on the Supreme Court of India are often pursued by students interested in getting an advanced law degree (usually an LL.M.) at a U.S. law school. Relying on interviews conducted with law clerks and interns who have served on the Supreme Court of India, and using India as a case study, this paper argues that ambitious Indian law students are adopting strategies to “Americanize” themselves in order to culturally arbitrage U.S. law schools' misunderstandings of the global legal profession."

Interestingly, there's now a detailed "scheme" for hiring law clerks at the Supreme Court.

Sunday, February 01, 2015

The Faculty
of Law, University of Oxford, Melbourne Law School, University of Melbourne and
National Law University, Delhi invite you to a conference on ‘Contemporary Issues in Indian Public Law:
Transnational Perspectives’.

The conference will be held on the 12th of
April 2015 at National Law University, Delhi.

There is
no registration fee for Indian residents,
but registration is essential. There is a conference registration fee of £20 for international participants. Please
ensure that you select the relevant category when registering. Upon
registration, further details relating to the event will be emailed to you closer
to the time.

If you
have any queries or require any help or advice regarding visa requirements or
hotel bookings, please email Joanna Simon on joanna.simon@seh.ox.ac.uk

This
conference is an International Association of Constitutional Law Roundtable

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